1 United States Court of Appeals,

Fifth Circuit.

No. 94-10825.

Robert MAYBERRY, Plaintiff-Appellant,

v.

VOUGHT AIRCRAFT COMPANY, Defendant-Appellee.

June 28, 1995.

Appeal from the United States District Court for the Northern

District of Texas.

Before GARWOOD, JOLLY and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Robert Mayberry challenges an adverse summary judgment on his

employment discrimination and retaliation claim s. Because the

summary judgment record fails to create a genuine issue of material

fact (restated, would not permit a reasonable juror to find for

Mayberry on either claim), we AFFIRM.

I.

Mayberry, who is black, has been employed as a machine

operator by Vought Aircraft Company since 1979. Vought uses a

pro gressive discipline program consisting of a verbal warning,

written warning, suspen sion, and termination. Only disciplinary

actions occurring within the prior year can be considered in

imposing progressive discipline.

Mayberry was discipli ned three times in 1991 for poor

workmanship in violation of the Vought Code of Conduct, receiving

a verbal warning in March, two written warnin gs in June, and a1 Vought's Code of Conduct states, in relevant part:

"Defective work resulting from inattention to the job, negligence

or carelessness may make it necessary for the company to take

corrective action. Deliberate production of defective work may

result in discharge".

2 Mayberry also filed discrimination charges with the Equal

Employment Opportunity Commission, none of which resulted in a

finding of discrimination.

2 three-day suspension in December. 1 He filed union grievances for

each disciplinary action, resulting, inter alia, in the agreement

that, if he had no further problems with his work until December 2,

1992, he would be reimbursed for his 1991 suspension. 2 On October

26, 1992, $8,000 in parts were "scrapped" (damaged) at Mayberry's

work station. He blamed the damage on a machine malfunction, but

Vought determin ed that he was at least partially at fault.

Although Vought could have terminat ed Mayberry (because his

suspension was less than a year old), it elected instead to suspend

him, in view of his seniority and the fact that it could not

determine the degree to which the machine may have been responsible

for the damage. Mayberry was suspended for 13 days.

Mayb erry filed this action in September 1993, claiming that

his suspension was on account of his race, and/or in retaliation

for prior discrimination claims brought against V ought and his

participation in demonstr ations against Vought for its alleged

discriminatory practices. On Vought's motion for summary judgment,

the district court held that Mayberry failed to establish a prima

facie case for retaliation, and, assuming a prima facie case of

discrimination, that Mayberry wa s unable to overcome Vought's

defense t hat the suspension resulted from its honest belief that3

Mayberry had violated the work-rule. Accordingly, summary judgment

was entered for Vought.

II.

Mayberry contests the dismissal of both claims. We review

summary j udgments d e novo, to determine, inter alia, whether any

genuine issue of material fact exists. Calpetco 1981 v. Marshall

Exploration, Inc., 989 F.2d 1408, 1412 (5th Cir.1993). For that

aspect, we draw all re asonable inferences in favor of the

nonmovant, and ask whether the evidence in the summary judgment

record is such that no reasonable juror could find in favor of the

nonmovant. A nderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106

S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986).

The analysis for Title VII discrimination claims is

well-known. S ee e.g., St. Mary's Honor Ctr. v. Hicks,

--- U.S.

---

-, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); T exas Dep't of

Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67

L.Ed.2d 207 (1981); M cDonne ll-Douglas Corp. v. Green, 411 U.S.

792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (197 3). The plaintiff must

establish a prima facie case that the defendant made an employment

decision that was motivated by a protected factor. Once

established, the defendant bears the burden of producing evidence

that its employment decision was based on a legitimate

nondiscriminatory reason. The burden then shifts back to the

plaintiff to prove that the defendant's proffered rea sons were a

pretext for discrimination. But, if the defendant has offered a

legitimate nondiscriminatory reason for its action, the presumption4

of discrimination derived from the plaintiff's prima facie case

"simply drops out of the picture", Hicks

, --- U.S. at ----, 113

S.Ct. at 2749, and "the ultimate question [is] discrimination vel

non ". Id. at ----, 113 S.Ct. at 2753 (citation omitted).

A.

In work-rule violation cases, a Title VII plaintiff may

establish a prima facie case by show ing "either that he did not

violate the rule or that, if he did, white employees who engaged in

similar acts were not punished similarly". G reen v. Armstrong

Rubber Co., 612 F.2d 967, 968 (5th Cir.), cert. denied, 449 U .S.

879, 101 S.Ct. 227, 66 L.Ed.2d 102 (1980). Mayberry travels both

avenues, claiming that he was not responsible for the damage, and

that, even assuming he was, similarly situated white employees have

not been disciplined.

1.

For showing that white employees were not disciplined,

Mayberry's evidence consists of reports from Vought's Accumulated

Scrappage Material record (ASM), read together with Vought's list

of violations of its Code of Conduct. The ASMs, which record each

instance when a part is scrapped, reveal such instances (for white

and black employees) that have no corresponding entry on Vought's

violations list. Significantly, the ASMs often include notations

such as "poor workmanship" or "operator error", apparently to

assign cause for the scrappage. Based on this evidence, Mayberry

urges that white employees were treated differently from him.

To establish a prima facie case in this manner, Mayberry must5

show that white e mployees were treated differently under

circumstances "nearly identical" to his. Little v. Republic Ref.

Co., 924 F.2d 93, 97 (5th Cir.1991); S mith v. Wal-Mart Stores, 891

F.2d 1177, 1180 (5th Cir.1990); D avi n v. Delta Air Lines, Inc.,

678 F.2d 567, 570-71 (5th Cir. Unit B 1982). In this regard,

Mayberry has offered evidence that white (and black) employees have

scrapped parts due, apparently, to operator error or poor

w orkmanship, and were not disciplined. However, as Vought

explained, and as Mayberry's own evidence confi rms, it does not

even conduct a disciplinary investigation, much les s take

disciplinary action, each time a part is scrapped. The decision to

investigate is based on two factors: the history of poor work

performance of the employee, and the cost of the damaged parts.

Mayberry fit both factors; he had several recent instances of poor

work performance, and the amount of damage was $8,000.

For whether a white employee in " nearly identical"

circumstances has received treatment different from Mayberry,

reference to the ASMs is of little value. Vought notes that they

are not intended, and are not used, for disciplinary purposes.

Rather, they serve only to maintain a record of each part that is

scrapped, and to provide authorization for the part's replacement.

Most importantly, they make no reference to the work history of the

employee or the amount of damage. Accordingly, they are not

evidence that white employees in "nearly identical" circumstances3 The ASMs may well have been a starting point from which to

build a case that would withstand summary judgment. Mayberry

could have gained information, through discovery, on the

individuals listed in the ASMs, which may well have substantiated

his claim of disparate treatment. Without more, however, the

ASMs are not helpful.

6 have been treated differently. 3 To the contrary, Mayberry's own

evidence reveals that, of the 14 other employees in his division

who were disciplined for their workmanship between 1991 and 1994,

none were black—12 were white and two were Hispanic. In sum,

Mayberry's evidence could not support a reasonable juror's finding

that he was treated differently from white employees. As such, he

fails to make a prima facie case on this basis.

2.

On the other hand, a prima facie case may be established by

showing that the plaintiff did not violate the work-rule for which

he was disciplined. G reen, 612 F.2d at 968. We agree with the

district court that Mayberry created a fact question on whether he

was responsible for the damage. Although the conclusion from

Vought's investigation was that Mayberry was at least partially at

fault, Vought admitted that "it could have been possible to have

had a software proble m". Furthermore, Mayberry offered evidence

that his machine had malfunctioned in the past. This, combined

with Mayberry's affidavit statement that he was not at fault,

creates a reaso nable question of whether Mayberry violated the

work-rule.

Vought responds to Mayberry's prima facie case by insisting

that there was no racial motivation in its decision to suspend4 Mayberry appears to suggest that he need not rebut Vought's

nondiscriminatory reason because a fact issue exists on whether

he violated the work-rule. Vought's burden, however, is only one

of production. Hicks, --- U.S. at ----, 113 S.Ct. at 2749. It

"need not persuade the court that it was actually motivated by

the proffered reasons". Id. (quoting Burdine, 450 U.S. at 254,

101 S.Ct. at 1094).

5 The data read-out on the machine, which would apparently

have indicated if there had been machine error, "had been

cleared". Mayberry denied having cleared the machine, and

insisted that it lost power and cleared itself.

7 Mayberry; that the decision was based solely on its conclusion,

following an investigation, that Mayberry was at least partially at

fault. With this, Vought has discharged its burden of production, 4

and the burden shifted to Mayberry to prove that Vought's proffered

reason is merely a pretext for discrimination. H icks,

--- U.S. at

----, 113 S.Ct. at 2749.

Mayberry attempts to overcome Vought's nondiscriminatory

reason ess entially by reasserting his prima facie evidence. As

discussed below, we conclude that, as a matter of law, Mayberry has

failed to rebut that nondiscriminatory reason.

The material fact issue on whether Mayberry was at fault

exists only because Vought admitted that, although it found no

evidence of machine error, it could not be certain that some sort

of machine ma lfunction did not occur. 5 Nonetheless, in Vought's

judgment it was clear enough that Mayberry was partially at fault.

And, because it was not certain that Mayberry was completely at

fault, Vought elected only to suspend him, whereas it could have

terminated him. Even so, Vought's uncertainty, together with

Mayberry's adam ant denial, allows for a reasonable question of6 In their briefs, the parties argued at length over whether

a plaintiff may rebut a defendant's nondiscriminatory reason by

showing only that the reason is not credible, without offering

proof, in addition to the prima facie case, of discriminatory

motive. Our en banc court may soon consider this issue. See

Rhodes v. Guiberson Oil Tools, 39 F.3d 537 (5th Cir.1994), reh'g

en banc granted, 49 F.3d 127 (5th Cir.1995). Because we conclude

that no reasonable juror could find that Vought's

nondiscriminatory reason was not credible, we do not reach this

issue.

8 fact. Mayberry seizes on this fact question as the basis for his

contention that Vought's nondiscriminatory reason for the

suspension is not credible. 6 Mayberry misses the mark. The

question is not whether an employer made an erroneous decision; it

is whether the decision was made with discriminatory motive.

[E]ven an incorrect belief that an employee's performance is

inadequate constitutes a legitimate, nondiscriminatory reason. We do not try in court the validity of good faith beliefs as

to an employee's competence. Motive is the issue.... [A]

dispute in the evidence concerning ... job performance does

not provide a sufficient basis for a reasonable factfinder to

infer that [the] proffered justification is unworthy of

credence.

Little, 924 F.2d at 97. See also Sherrod v. Sears Roebuck & Co.,

785 F.2d 1312 (5th Cir.1986); Turner v. Texas Instruments, Inc.,

555 F.2d 1251, 1256 (5th Cir.1977); J ones v. Gerwens, 874 F.2d

1534, 1540 (11th Cir.1989).

Attempting to offer more than the me re dispute over whether

Vought properly found him at fault, Mayberry resorts to the

evidence we rejected in the context of his prima facie case: that

white employees are t reated differently. Needless to say,

Mayberry's evid ence of disparate treatment is no more helpful or

persuasive in the context of rebutting Vought's nondiscriminatory

explanation. As noted, Mayberry has not offered evidence7 Mayberry also asserts that his workmanship violations began

to issue only after he joined in a class action discrimination

complaint against Vought, and after his participation in

picketing against it.

8 We note that the Department of Labor found only individual

instances of discrimination in promotion decisions, and "[t]hese

instances did not occur in any pattern or practice that would

suggest Blacks, as a class, were treated differently because of

their race".

9 sufficient to support a find ing that white employees in

circumstances "nearly identical" to his have been treated

differently. See Little, 924 F.2d at 96-97 (rejecting rebuttal

evi dence of disparate treatment because circumstances were not

"nearly identical").

Finally, M ayberry appears to suggest that Vought's

nondiscriminatory explanation is suspect because, according to

Mayberry, Vought has a propensity for discrimination because of a

finding by the Department of Labor that Vought had occasionally

discriminated on the basis of race in its promotion decisions. 7 We

will not entertain such a suggestion. According to his affidavit,

M ayberry has brought, or been a party to, at least si x prior

charges of discrimination against Vought, none of which have

resulted in a finding of discrimination against Mayberry. Just as

we cannot assume that Mayberry's past conduct suggests a propensity

to file false charges, we cannot assume that Vought's past conduct

suggests it has discriminated against Mayberry. 8

In sum, based on the summary judgment record, a reasonable

juror could not conclude that Mayberry received the 13- day

suspension be cause of his race. Therefore, summary judgment on9 Mayberry also rests a prima facie case on the basis of the

evidence offered for his discrimination claim. To the extent

that such evidence may be relevant to a prima facie case for

retaliation, we find it insufficient, as discussed in part II.A.,

supra.

10 this claim was proper.

B.

A prima facie case of retaliation exists if the plaintiff

establishes that ( 1 ) he participated in statutorily protected

activity, (2) he received an adverse employment action, and (3) a

causal connection exists between the protected activity and the

adverse action. A rmstrong v. City of Dallas, 997 F.2d 62, 65 n. 3

(5th Cir.1993). The parties agree that Mayberry meets the first

two elements. Vought contends, however, and the district court

agreed, that Mayberry failed to create a material fact issue on the

existence of a causal connection between his protected activity and

his suspension.

Mayberry asserts that the timing of the suspension in

relation to his protected activity establishes the required nexus. 9

The timing of the adverse employment action can be a significant,

although not necessarily determinative, factor. S ee e.g., Shirley

v. Chrysler First, Inc., 970 F.2d 39, 42 (5th Cir.1992) (discussing

evaluation of "timing" evidence). In this case, however, it is

unclear that the timing of the suspension benefits Mayberry's case.

According to his affidavit, Mayberry first engag ed in

protected activity (filed an EEOC charge) sometime "in the mid

1980' s", and continued, with regularity, in protected activity10 It is unclear when Mayberry filed his first EEOC

complaint. Mayberry states in his affidavit that he had filed

EEOC complaints "in the mid 1980's". Mayberry filed an EEOC

charge in connection with his delayed promotion to Class B

machine operator. He again filed an EEOC charge in connection

with his delayed promotion to Class A machine operator. The

class A promotion occurred in 1988; therefore, his first EEOC

complaint (if it was for his class B promotion) must have

occurred prior to 1988. Mayberry also engaged in protected

activity (discrimination charges and/or picketing against Vought)

in 1988, 1990, 1991, and 1992.

11 through 1992. 10 In this regard, there is nothing inherently

"suspicious" about a 13-day suspension that occurs at least several

years after pr otected activity begins. Indeed, one might argue

that the "timing" here is evidence against retaliation. We need

not go that far. Suffice it to say that we find insufficient

evidence to support a finding that "but for" Mayberry's protected

activity, he would not have received the 13-day suspension. S ee

Jack v. Texaco Research Ctr., 743 F.2d 1129, 1131 (5th Cir.1984)

(noting that prima facie retaliation requires "but for" causation).

Furthermore, assuming arguendo that Mayberry established a

prima facie case, he fails, for summary judgmen t purposes, to

overcome Vought's legitimate nondiscriminatory reason for the

suspension—its belief that Mayberry viola ted the work-rule. The

analysis in part II.A, supra, applies here.

III.

For the foregoing reasons, the judgment is

AFFIRMED.